View all Contract Drafting Dispute Resolution Procedure Pre-dispute Strategy Arbitration ADR & Settlement Enforcement Third Party Funding Training & Presentations
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Our services

Nkafu Arbitration Services (NAS) and its consultants provide an end-to-end service in respect of arbitration and arbitration-related matters. At one end, we assist our clients to ensure that appropriate and robust dispute resolution clauses are included within their contracts. At the other end, we represent our clients in arbitration proceedings or any post-award actions. NAS and its consultants provide a holistic service for those facing arbitration issues.

Below you will find a summary of the breadth of our services.

Contract Drafting

Arbitration but one means of resolving a dispute between parties, but it is fast becoming the method of choice for individuals, corporates and States doing business across the continent. The great majority of agreements to arbitrate are contained in contractual clauses from the outset. But what should those clauses say? What should they omit? How should they be tailored to suit the circumstances of the parties or the relations anticipated under the contract in question? Is arbitration even a suitable option?

The short answer to all of these questions is: it depends. The reality is that no single arbitration clause can ever act as a one-size-fits-all model for all scenarios. A boilerplate provision rarely will suffice. NAS and its consultants have the experience and expertise to work with you to determine your objectives and to reflect those within a bespoke arbitration clause. Amongst other things, we can advise on appropriate governing laws and choice of seats of arbitration, multi-tiered dispute resolution procedures, issues of joinder and consolidation and the suitability (or not) of institutional rules.

We work with our clients to tailor-make an arbitration clause that works for them. Taking care at contract drafting stage ensures as best possible that there is both certainty of process if ever a dispute does arise and a suitable mechanism through which the parties can work together to resolve the dispute.

Dispute Resolution Procedure

A client rarely wishes to go into dispute. But many plan for it, often many years in advance. Whilst the precise nature and extent of disputes seldom can be predicted, there are many steps that a client can take to mitigate the risks and effects of a dispute if it ever were to arise. NAS and its consultants can work with clients to understand the typical trajectory of disputes and how they can take steps today to manage that risk. From undertaking due diligence of contracts to ensuring that best practice document management dispute policies are in place, we can assist you to plan for the risk of disputes.

Pre-dispute Strategy & Advisory

A dispute rarely starts the day that arbitration is commenced. Even without a multi-tiered dispute resolution clause, parties will often have numerous exchanges in the pre-dispute phase. It is critical that a disputes expert is brought in to advise at the earliest opportunity to ensure that nothing is said or done that might prejudice your position later in the proceedings and to ensure that strategically you optimise your position. Indeed, in the specific context of arbitration, failures to follow prescribed pre-dispute steps can have very serious consequences and could lead to issues upon award enforcement many years later. NAS and its consultants are well placed to work with you and your existing transactional legal team as soon as a dispute is anticipated to strategically and critically ensure that your position is protected.

Arbitration

NAS and its consultants are highly experienced and expert in representing clients in arbitration proceedings. Many of our team also sit as arbitrators, which experience they can bring to bear when representing you. The team is adept at operating under the main institutional rules (ICC, LCIA, UNCITRAL, LMAA, OHADA, etc.) and under ad-hoc arrangements. It also has experience of advising on investment treaty disputes. And, as an African-focussed practice, it distinguishes itself in being able also to navigate many of the newer arbitral institutions on the continent and the OHADA regime.

As the case requires, NAS works with consultants to build a team around the needs of the client and the features of the dispute. Details of some of those consultants and why they have carefully been selected by NAS as being suitable to the African markets can be found here. NAS works with these consultants as a team and seamlessly provides a single point of service to our clients.

Importantly, we at NAS have the cultural experience of doing business in Africa and so can impact such business needs into the requirements of the international arbitration process. We understand our clients’ perspectives, we use our geographic business nous to strategic advantage, and we avoid many of the pitfalls that other firms without a pedigree in African disputes often fall into.

Alternative Dispute Resolution (ADR) & Settlement

The NAS team (including its consultants) seeks always to deliver commercially-focussed advice. Often, it is better to explore settling disputes, whether at the outset of a dispute arising or at various stages throughout its lifetime. We neither see settlement as a failure nor as a measure of last resort. We always work with our clients to determine their objectives in respect of any dispute and to assess if settlement strategically is one of them.

NAS and its consultants are experienced in conducting settlement negotiations and/or taking other suitable steps in alternative dispute resolution, such as mediation, adjudication or expert determination.

Enforcement & Challenges

As with any dispute process, obtaining a determination in your favour is not always the end of the matter. Arbitration is no different, albeit that many features of arbitration make it a more attractive method of dispute resolution over, for example, proceeding before the local courts in a jurisdiction. Indeed, the relative ease with which arbitration awards can be recognised and enforced in courts across the globe is one of its defining characteristics which makes it indispensable to international business.

Nonetheless, risks (or opportunities) can exist when it comes to challenging or enforcing arbitration awards and NAS is well-placed, in association with its consultants, to work with clients to explore and navigate these issues. Using our networks, we are able to identify and work seamlessly with lawyers in every African or other jurisdiction in which enforcement actions or challenges to awards are feared, anticipated or lodged.

We also use our knowledge of the risks of enforcement to inform strategy and our advice during pre-dispute phases. We are able to work with our consultants to assist in the tracing of assets for the purposes of identifying jurisdictions in which enforcement could be pursued in order to satisfy arbitration awards.

Third Party Funding (TPF) & Other Funding Options

The business of third party funding (“TPF”) has grown exponentially over the recent past such that it is now explored as a potential method of funding claims in most cases and is being increasingly used by savvy clients to ring-fence or manage dispute cost and risk. TPF is not yet permissible in a number of jurisdictions, so advice should always be sought before it is considered as a potential way of funding.

NAS and its consultants can draw from experience in negotiating TPF and other innovative arrangements for funding a client’s dispute and managing the risk of exposure to an opponent’s legal costs.

TPF is an arrangement whereby an independent third party will fund a portion or all of a client’s legal fees in exchange for a return, often out of damages secured and often expressed as a multiple of sums invested. Similarly, before- and after-the-event insurance products exist that, upon payment of a premium, will cover a client’s exposure to paying an opponent’s legal costs (e.g., where a client loses its claim). NAS’s network also includes firms that are prepared to consider entering into contingency or damages-based agreements whereby a portion of the firm’s fees are put ‘at risk’ in exchange for a return upon success in the case.

Working with its networks, NAS can approach the TPF and insurance markets and consider options for funding legal costs with its consultants. If this is of any interest, please get in contact with us.

Training & Presentations

NAS provides arbitration and arbitration-related services and was conceived specifically to advise and represent the African markets. That gives us a perspective that most other law firms, let alone consultancies, will not share and which sets us apart.

That approach is reflected also in the training that we deliver. We offer training to anyone that is interested in learning more about arbitration and its practice or wanting to understand the implications of arbitration within their particular sector or markets. Our training is tailored to you and your business needs and we aim to deliver a programme that complements your objectives.

NAS takes training seriously and members of its team (to include its consultants) are qualified trainers on the approved list of trainers of the globally reputed Chartered Institute of Arbitrators (CIArb).

As part of its commitment to the continued promotion of arbitration on the continent, the NAS team is also prepared to accept speaking engagements or deliver presentations on those topics that relate to the practice of arbitration in Africa and the many challenges that it still faces.